San Francisco Human Servs. Agency
v.
J.W. (In re I.W.)

This case is not covered by Casetext's citator
COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREENov 8, 2018
A154045 (Cal. Ct. App. Nov. 8, 2018)

A154045 A153715

11-08-2018

In re I.W., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.W. et al., Defendants and Appellants.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. JD16-3241)

J.W., the paternal grandfather (grandfather) of two-year-old I.W., appeals an order denying his petition for modification pursuant to Welfare and Institutions Code section 388 requesting that his grandson be placed with him. He contends the court erred in failing to apply the section 361.3 relative placement preference in considering his petition.

All statutory references are to the Welfare and Institutions Code unless otherwise noted.

Section 361.3 gives "preferential consideration" to a request by a relative of a child who has been removed from parental custody for placement of that child. Factors to consider when evaluating placement with a relative under section 361.3 include, among others, "[t]he best interest of the child" (id., subd. (a)(1)); "[t]he good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect" (id., subd. (a)(5)); the ability of the relative to "[p]rovide a safe, secure, and stable environment for the child," "[e]xercise proper and effective care and control of the child," and "[p]rotect the child from his or her parents" (id., subd. (a)(7)(A), (B) & (D)); and "[t]he safety of the relative's home" (id., subd. (a)(8)(A)).

In a consolidated appeal, mother appeals from the juvenile court's order terminating her parental rights and selecting adoption as the child's permanent plan. She also contends the court erred in denying grandfather's request for placement and argues that the error was prejudicial because placement with the grandfather would have precluded the need for termination of her parental rights.

We reject appellants' argument that grandfather was entitled to an independent placement assessment under section 361.3 and conclude that the court did not abuse its discretion in finding that a change in placement would not be in the child's best interest. Accordingly, we shall affirm the challenged orders.

In light of our decision on the merits, we need not reach the arguments made by the San Francisco Human Services Agency (agency) that mother lacks standing to appeal and that appellants waived their right to contest placement by not challenging the disposition or six-month review orders.

Background

In July 2016, two-day-old I.W. was taken into protective custody based on the inability of his parents to provide care and support for him. In August, the court found that the child came within subdivisions (b)(1) and (g) of section 300. A disposition hearing was set for October 6.

The report prepared for the jurisdiction hearing stated that within days of the child's removal, parents requested he be placed with grandfather, who lived in San Diego and was caring for the child's older sister. The agency acknowledged that grandfather was entitled to consideration as a possible relative placement. However, because the San Diego child protective services agency was conducting an investigation into an allegation made by the infant's father that he had been molested by grandfather, the agency reported that it was unable to assess grandfather's home for placement until that investigation was resolved. The agency stated that if the investigation "is closed as unfounded, then [grandfather] will be assessed for possible placement." On September 26, the agency filed a report indicating that the allegations against grandfather had been determined to be unfounded, that the investigation had been closed on August 25, that it was exploring placement with grandfather, and that a home visit was scheduled for October 1.

At the disposition hearing on October 6, the infant was placed in foster care and reunification services were ordered for mother. On October 21, the infant was placed with his current foster family.

In November, grandfather separated from his wife and moved with the child's older sister to Washington state. In January, the agency obtained an expedited order for a home study under the Interstate Compact on the Placement of Children (ICPC), Family Code section 7900 et seq. Due to an unspecified administrative problem, it was necessary for the agency to request a second order in February. That order was sent to Washington on April 13, 2017.

At the six-month review hearing held on May 2, 2017, the court terminated mother's reunification services and set a section 366.26 hearing.

Mother filed a writ petition challenging the order setting the permanency planning hearing on the grounds that she was not afforded proper notice of the proceedings after the jurisdiction hearing and that she had not received reasonable reunification services. Her petition was denied on November 15.

On May 24, 2017, the Washington social worker assigned to do grandfather's home study reported that grandfather could not be licensed in that state because five months earlier he had requested an in-home caregiver to assist with daily needs. Although grandfather had not followed through with that request, the social worker was concerned that the grandfather felt he could not adequately meet his own physical requirements. Shortly after his foster care license was denied, grandfather called the Washington social worker to inform her that the request for an in-home caregiver had been a mistake and that, in any event, he was once again living with his wife who could help care for the child. On May 30, grandfather was informed by the social worker in Washington that the agency in California would need to request a new home study if grandfather wanted his wife to be included in the assessment.

In June, grandfather was appointed guardian of the infant's then three-year-old sister. That month, the court also granted the request by the infant's current caregivers for de facto parent status.

On November 29, 2017, grandfather telephoned the social worker assigned to the case asking for a new ICPC placement evaluation. The social worker denied the request, stating that the agency was moving forward with adoption by the foster parents who had been caring for the child since he was three months old.

On January 17, 2018, grandfather filed a section 388 petition seeking to be "reconsidered as a placement option" for the child. His petition states that the change in placement would be in the child's best interest because his sister lives with him and he would benefit from growing up with his biological family. In his supporting declaration, grandfather states, "I believe my ICPC approval was denied because of concerns about . . . my disability. When I first moved here, I filled out forms for medical insurance and accidentally checked a box that I needed a live-in caregiver, which is not true. The ICPC people said that since the box was checked, they could not approve me to care for a child. As I've stated here, my disability does not prevent me from providing proper care and supervision for [sister]." Grandfather requested the ICPC placement process be reviewed and the child placed with him in Washington. The petition asserted that mother and father both supported grandfather's request. The foster parents opposed the change in placement, arguing that as the current caregivers and de facto parents their application for adoption was entitled to preference under section 366.26, subdivision (k).

Grandfather's petition was heard in conjunction with the previously scheduled section 366.26 hearing. After hearing testimony by the social workers, mother and grandfather, the court denied the section 388 petition on the ground that the change in placement was not in the child's best interest. The court explained that although framed as a request for placement with grandfather, "it's actually not a new placement, it's a removal from the current caretakers. And removal from the current caretakers would not be in the best interest of the child. . . . [¶] The current caregivers have bonded with this baby. It's not that grandfather is lesser in any way, but at this time the statutory preference for a relative placement doesn't seem to apply . . . ." With respect to the section 366.26 hearing, the court terminated parental rights, selected adoption as the permanent plan and designated the current caregivers as the prospective adoptive parents.

Mother and grandfather timely filed notices of appeal.

Discussion

Under section 388, a parent or other interested relative may petition for a change in placement at any time after the minor has been declared a dependent child of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) "At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child." (Ibid.)

Section 388, subdivision (a) provides in pertinent part, "Any parent or other person having an interest in . . . a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." --------

"In any custody determination, a primary consideration in determining the child's best interest is the goal of assuring stability and continuity. [Citation.] 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citations.] [¶] . . . [¶] After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M., supra, 7 Cal.4th at p. 317; see also In re M.H. (2018) 21 Cal.App.5th 1296, 1304-1305.) The determination of the child's best interests is "committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established." (In re Stephanie M., supra, at p. 318.)

Appellants understandably do not challenge the court's determination that it would not be in the child's best interest to remove him from his current caregivers' home. It is undisputed that at the time of the hearing the child had lived with the foster family for 15 of his 18 months of life and had strong emotional ties to the foster family. Appellants contend that grandfather nonetheless was entitled to a full hearing on placement under section 361.3, with due consideration of the statutory relative-placement preference, rather than a truncated hearing on whether a change in placement was in the child's best interest under section 388. (See In re Isabella G. (2016) 246 Cal.App.4th 708, 712 [where grandparents repeatedly invoked relative placement preference and agency failed to apply it, court was required to consider preference upon grandparents' subsequent filing of a section 388 petition]; In re R.T. (2015) 232 Cal.App.4th 1284, 1300 [same].) They argue that the agency failed to exercise due diligence in pursuing its assessment of grandfather's home and thus, the agency was precluded from denying him consideration under section 361.3 at the hearing on his petition. They also argue the juvenile court erred by failing "to exact the agency's compliance with the section 361.3 relative placement preference statute with respect to [grandfather's] request that [child] be placed with him. And, because of the lack of compliance, the juvenile court never made an independent judgment on the issue whether [grandfather] should be granted custody of his young grandson."

Contrary to appellants' arguments, the agency made reasonable efforts to assess grandfather's home for placement. In July, when the child was detained and grandfather requested placement, the agency reasonably delayed commencement of the assessment for a month until the investigation into father's allegations of abuse was resolved. Scheduling the home visit for October 1, just over a month later, does not reflect a lack of due diligence. The assessment was stalled again, through no apparent fault of the agency, when grandfather separated from his wife and moved to Washington. Once he was settled, the agency timely requested an order for a ICPC home study. It is unfortunate that an administrative error required the agency to request a second order in February and that the assessment request was not forwarded to the proper Washington agency until April, but we cannot characterize the agency's conduct as lacking in due diligence. The six-month review report indicates that as of early May, the agency still believed placement with grandfather was a reasonable possibility. When the Washington agency rejected placement in May, grandfather waited for undisclosed reasons until November to request a second assessment. By that time, reunification services had been terminated and a section 366.26 hearing had been set. At that point, the agency was reasonably focused on securing stability for the child with his current caregivers. Grandfather then waited until January to file his petition. Grandfather shares responsibility for the delay in his assessment for placement. As the trial court noted, "there have been delays with the grandfather . . . and the ICPC process and him getting his own life with his wife back on track, and things that have delayed his ability to take over care of the child when it was legally an option available to him."

In re Isabella G., supra, 246 Cal.App.4th at page 712, relied on by appellants, is distinguishable. In that case, the grandparents repeatedly asked to have their grandchild, who had lived with them for almost two years, placed with them but on each occasion the social services agency ignored their request. At disposition, the agency placed the child with a nonrelative extended family member without assessing the grandparents' home for placement and erroneously told the grandparents the agency would have to wait a year before the child could be moved again. (Id. at pp. 712-714.) After a year had passed, the grandparents again requested placement and were ignored by the agency. (Id. at p. 714.) After reunification services were terminated, the grandparents again requested placement but the social worker decided not to conduct a review because the child was in a stable prospective adoptive home. (Id. at p. 715.) Finally, six months later, at the time of the section 366.26 hearing, grandparents filed a section 388 petition seeking the child's placement with them. (Ibid.) The juvenile court denied the petition, concluding that the relative placement preference did not apply because reunification services had been terminated and the best interest of the child would be served by adoption by the nonrelative extended family member, to whom she had substantial emotional ties. (Id. at p. 717.) The appellate court reversed, holding that grandparents were entitled to full consideration for placement under section 361.3. (Id. at pp. 719-723.) The court explained that "when a relative requests placement of the child prior to the dispositional hearing, and the Agency does not timely complete a relative home assessment as required by law, the relative requesting placement is entitled to a hearing under section 361.3 without having to file a section 388 petition." (Id. at p. 712.) As the trial court noted here, however, the facts in Isabella are distinguishable. Unlike the agency in Isabella, which made no attempt to evaluate the grandparents' home for placement, in this case the agency took reasonable steps to assess grandfather's home for placement and the placement was reasonably rejected.

On this record, the court properly considered grandfather's petition as a request for change in placement. The court was not required to evaluate the suitability of his home for placement in the first instance. Accordingly, we affirm the order denying grandfather's section 388 petition. Because mother's argument on appeal is premised entirely on the denial of placement with grandfather, we also affirm the termination of her parental rights.

Disposition

The order denying grandfather's section 388 petition and terminating parental rights is affirmed.

Pollak, J. We concur: Siggins, P.J.
Jenkins, J.